Digital Commons Network^™

Nonconsensual Family Obligations, Emily J. Stolzenberg

BYU Law Review

Even as the pandemic has both highlighted and compounded the challenges many U.S. families face in meeting their members’ basic needs, efforts to expand public subsidies for caretaking have gained little traction. Scholars have identified many historical and practical reasons for Americans’ entrenched skepticism toward the welfare state. Ideas matter, too, and this Article uncovers and critiques one that works to limit collective financial responsibility for families: the conviction that family support obligations must be legitimated through consent.

In family law, as in liberal political theory, consent works to reconcile state regulation with individual freedom. But because consent is a …

Francisco Cedeno, Petitioner And Appellee V. Xochitl Cedeno, Respondent And Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

appeal from final contempt order of the Honorable G. Michael Westfall Of the Fifth Judicial District Court in and for Washington County, State of Utah Francisco I. Cedeno, Pro Se 1450 N Dixie Downs Road Trailer # 23 St. George, UT 84770

Of the Fifth Judicial District Court in and for Washington County, State of Utah Francisco I. Cedeno, Pro Se Trailer # 23 Kathryn Bliss Holt #5666 Boyack Christiansen Legal Solutions Attorney for Appellant

2022 Byu Law Review Masthead

BYU Law Review

No abstract provided.

Byu Law Review Subscription Information

BYU Law Review

No abstract provided.

The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee

BYU Law Review

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due …

Abolishing The Evidence-Based Paradigm, Erin Collins

BYU Law Review

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …

Nontraditional Investors, Jennifer S. Fan

BYU Law Review

In recent years, nontraditional investors have become a major player in the startup ecosystem. Under the regulatory regime of U.S. securities law, those in the public realm are heavily regulated, while those in the private realm are largely left alone. This public-private divide, which is a fundamental organizing principle of securities law, has eroded with the rise of nontraditional investors. While legal scholars have addressed the impact of some of these nontraditional investors individually, their collective impact on deal terms, deal timelines, due diligence, and board configuration has not been discussed in a holistic manner; neither has their impact on …

The Original “Market” Understanding Of The Commerce Clause: Insights From Early Federal Government Practice And Precedent, Robert J. Pushaw Jr.

BYU Law Review

No abstract provided.

America The Divisible: Local Taxes And The Salt Subsidy, Matthew S. Johnson

BYU Law Review

The state and local tax (SALT) deduction subsidizes localities in a way that has not fully been appreciated by policymakers, practitioners, or academics. While the state portion of the SALT deduction captures headlines and receives significant attention from academics, the local portion has been overlooked. Local taxes introduce concerns that are not relevant to state-levied taxes. The local tax deduction provides a greater subsidy, per capita, for wealthy localities than it does for economically heterogeneous or less wealthy localities. This Note is the first to quantify the subsidy received by localities through the SALT deduction. This Note contributes to the …

State Of Utah, Plaintiff / Appellee V. Justin Jessop, Defendant / Appellant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Second Judicial District Court, Weber County, Honorable Michael DiReda, District Court No. 191902276

Natalie Edmundson, Sean Reyes, Counsel for Appellee

Emily Adams, Freyja Johnson, Melissa Jo Townsend, Scott D. Goodwin, Counsel for Appellant

Big Game Forever, Appellant, V. Eric S. Peterson: Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM THE THIRD DISTRICT COURT, SALT LAKE COUNTY, UTAH BEFORE THE HONORABLE KARA PETTIT

D. Loren Washburn (10993) Trinity Jordan (15875) ARMSTRONG TEASDALE LLP

David C. Reymann (8495) Jeffrey J. Hunt (5855) PARR BROWN GEE & LOVELESS,

Big Game Forever, Appellant V. Eric Peterson, Appellees: Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM THE THIRD DISTRICT COURT, SALT LAKE COUNTY, UTAH BEFORE THE HONORABLE KARA PETTIT

D. Loren Washburn (10993) Trinity Jordan (15875) ARMSTRONG TEASDALE LLP

David C. Reymann (8495) Jeffrey J. Hunt (5855) PARR BROWN GEE & LOVELESS

State Of Utah, Plaintiff / Appellee V. Roberto Garcia, Defendant / Appellant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Second Judicial District Court, Weber County, Honorable Joseph Bean, District Court No. 201901238

Jonathan S. Bauer, Sean Reyes, Counsel for Appellee

Emily Adams, Freyja Johnson, Melissa Jo Townsend, Counsel for Appellant

Alexis Doutre, Appellant, V. Box Elder County; Brigham City; Union Pacific Railroad Company; And Utah Department Of Transportation, Appellees : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

BRIEF OF BOX ELDER COUNTY On Appeal from the Second Judicial District Court, Weber County,

TROY L. BOOHER, BETH E. KENNEDY, TAYLOR P. WEВB, ZIMMERMAN ВООНЕR, Counsel for Alexis Doutre, LINDY W. HAMILTON, ROBERT W. GIBBONS, Counsel for Alexis Doutre

SUSAN BLACK DUNN, Counsel for Box Elder County, PEGGY E. STONE, Counsel for Utah Department of Transportation, MATTHEW D. CHURCН, Counsel for Brigham City, GINA M. ROSSI, Counsel For Union Pacific Railroad Company

State Of Utah, Plaintiff/Appellee V. True Sparling, Defendant/Appellant. : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM A CRIMINAL SENTENCE JUDGMENT AND COMMITMENT ENTERED BY THE HONORABLE DON M. TORGERSON OF THE SEVENTH JUDICIAL DISTRICT COURT IN AND FOR SAN JUAN COUNTY, STATE OF UTAH

K. ANDREW FITZGERALD, Attorney for Defendant/Appellant, True Sparling

Washington Townhomes, Llc; Homes By Harmony, Inc.; Cotton Meadows, Llc; Salisburty Development Llc; Southern Utah Home Builders Assn.; Ivory Southern, Llc; Perry Homes Utah; Henry Walker Construction Of Southern Utah, Llc, Plaintiffs /Appellees, V. Washington County Water Conservancy District, Defendant /Appellant : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Fifth Judicial District Court, Washington County, Judge Jeffrey C. Wilcox, Case No. 130500465

Robert C. Keller, Scott P. Powers, Nathanael J. Mitchell, Attorneys for Appellant

Benson L. Hathaway, Jr., Justin W Starr, Adam D. Wahlquist, Attorneys for Appellees

An Empirical Study Of Copyright's Substantial Similarity Test, Clark D. Asay

Faculty Scholarship

The substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.

To help provide a clearer empirical assessment of the test, this study …

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

BYU Law Review

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation.

But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

2022 Byu Law Review Masthead

BYU Law Review

No abstract provided.

Byu Law Review Subscription Information

BYU Law Review

No abstract provided.

Table Of Contents

BYU Law Review

No abstract provided.

The Congruent Constitution (Part One): Incorporation, Jay S. Bybee

BYU Law Review

In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the …

Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba

BYU Law Review

Artificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.

This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. …

Public Lands In Public Hands: Analysis Of The Underpinnings Of Utah’S Public Trust Doctrine, Brittany Bunker Thorley

BYU Law Review

Utah Lake, the largest freshwater lake in the third driest state, is a vital, yet underappreciated natural resource. In 2018, the Utah State Legislature passed the Utah Lake Restoration Act in an attempt to restore and enhance the lake’s ecological and recreational value. Yet the new law has been met with strong public resistance because it leaves the lake vulnerable to exploitation and further ecological degradation, a concern made real by a proposed development plan that would build a city of islands on top of the lake. Community members cite specific concerns about threats to native species, disruption of water …

Procedural Wrongdoing, Matthew A. Shapiro

BYU Law Review

Both the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct — their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the net benefits of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of …

David R. Harman, Plaintiff/ Appellant V. 105 Partners, Llc Fka 105 Holdings, Llc , Anthony M. Thurber And Brekke R. Felt, In Their Capacity As Trustees Of The Anthony Fernlund & Lorraine Thurber Trust, And Lorraine Thurber, Defendant /Appellees : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Richard D. Flint, Angelica M. Juarez, Attorneys for Appellee 105 Partners, LLC FKA 105 Holdings, LLC, Leslie W. Slaugh, Richard A. Roberts, Attorneys for Appellees Anthony M. Thurber and Brekke R. Felt, in their capacity as Trustees of the Anthony Fernlund & Lorraine Thurber Trust, and Lorraine Thurber

Richard D. Flint, Angelica M. Juarez, Attorneys for Appellee 105 Partners, LLC FKA 105 Holdings, LLC, Leslie W. Slaugh, Richard A. Roberts, Attorneys for Appellees Anthony M. Thurber and Brekke R. Felt, in their capacity as Trustees of the Anthony Fernlund & Lorraine Thurber Trust, and Lorraine Thurber

J. Spencer Ball, Attorney …

David R. Harman, Plaintiff/ Appellant, V,105 Partners, Llc Fka 105 Holdings, Llc, Anthony M. Thurber And Brekke R. Felt, In Their Capacity As Trustees Of The Anthony Fernlund & Lorraine Thurber Trust, And Lorraine Thurber, Defendants/ Appellees : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from Final Judgment Granting Motions to Dismiss, Amended Final Judgment and Denial of Temporary Restraining Order Fourth District Court for Utah County, Provo Department The Honorable Robert Lund

Richard D. Flint, Angelica M. Juarez, Attorneys for Appellee 105 Partners, LLC FKA 105 Holdings, LLC Leslie W. Slaugh, Richard A. Roberts, Attorneys for Appellees Anthony M. Thurber and Brekke R. Felt,

J. Spencer Ball, Attorney for Appellant David R. Harman

Michael Robert Tilleman, Appellant /Petitioner V. Michal Christine Tilleman, Appellee /Respondent : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court, Honorable James Brady, District Court No. 164402522

Douglas Thayer, Andy Wright, Attorneys for Appellee Michal Christine Tilleman

Julie J. Nelson, Attorney for Appellant Michael Robert Tilleman

Michael Robert Tilleman, Appellant V. Michal Christine Tilleman, Appellee : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court, Honorable James Brady, District Court No. 164402522

Douglas Thayer, Andy Wright, Attorneys for Appellee

Julie J. Nelson, Attorney for Appellant

Robert Wakefield, On Behalf Of The Estate Of His Deceased Son, Jared Wakefield, Plaintiff / Appellant V. David A. Gutzman, Defendant / Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

appeal from the Fourth Judicial District Court, Utah County, Honorable Robert A. Lund, District Court No. 150400386

Tawni J. Anderson, Tucker F. Levis, Counsel for Appellee

Emily Adams, Sara Pfrommer, Freyja Johnson, Counsel for Appellant